Design Ding-dong
This week, Next and Asda are the latest high street retailers to commence a legal battle over infringement of clothing designs. Next are claiming that George at Asda have copied five of their items including jeans and jackets and if Next win such a battle, they could receive a vast damages package.
Hypocritically to an extent, Next is no stranger to litigation of this type having had previous assertions bestowed upon them that they copied a footwear design by the well known brand, Lacoste: Claims of design infringement are certainly on the increase.
So what is a Design?
A design is just that, the "look" of the product, including the shape, texture, colour etc and in order to qualify as a new design, the product must be substantially different to any existing design. The substantially different element is a common qualifying thread among most types of Intellectual Property rights and if you can meet this element in respect of a design, you are afforded protection both under UK and EU Law.
Unregistered design rights stand alone from copyright (which can co-exist with the design right i.e. the actual drawing of the design would have copyright protection) but are treated in the same manner – they are automatic, last for a period of 15 years and vest in the creator (or his employer). This automatic right has existed in the UK since 1989, with the European equivalent being created in 2002.
The problem with an unregistered design is that, to show infringement, you have to show that the other party actually copied it. By contrast, a registered design (like a registered trade mark or patent) gives a monopoly right so that infringement action can be taken without the need to establish actual copying, and with a registration fee of only £60, the costs are not high.
So designs are big business – not only can you benefit economically from the sale of the final product, you can also assert founded infringement claims in order to claim damages. It is therefore worthwhile to ensure that your design is afforded the best possible protection, whether it be unregistered design rights, registered design rights, pure copyright or trade mark, it is worthwhile taking specialist legal advice to ensure your design is secure.
Who knows – on taking appropriate legal advice, your company could be the next Adidas, who has just been awarded damages of a staggering $305 million in the USA from German company, Payless for breaching their 3 stripe trademark. This, on top of another ruling in Adidas' favour against the same company in the European Court of Justice certainly shows that infringers really do pay a hefty price.
FOR FURTHER INFORMATION PLEASE CONTACT: SCOTT KERR